The same conclusion was reached about two centuries later by Lord Coke' who said of a pardoned felon not only that "he is not a fit person to serve on a jury," but also "by the same reason the testimony of such an one for a witness is in all cases to be rejected." 10

No case arose subsequently which indicated any enlargement of the views of the English Court as to the effect of a pardon until Cuddington v. Wilkins, decided in 1615.11 This decision has probably been the main foundation of the impression that after a pardon the law could not thereafter see the convict's guilt. The case was as follows: "Cuddington brought an action of the case against Wilkins for calling him a thief. The defendant justified, because beforetime he had stolen somewhat. The plaintiff replied, that since the supposed felony, the general pardon in the seventh year of the king was made, and makes the usual averment to bring himself within the pardon. Whereupon the defendant demurs." The court said the felony was by pardon extinct; and the case was adjudged for the plaintiff, for the whole court were of opinion that though he was a thief once, yet when the pardon came it took away, not only poenam, but reatum, for felony is contra coronam et dignitatem regis," and the report proceeds:

"Now when the king had discharged it, and pardoned him of it, he had cleared the person of the crime and infamy, wherein no private person is interested but the Commonwealth, whereof he is the head, and in whom all general wrongs reside, and to whom the reformation of all general wrongs belongs."

The case is referred to again in a later part of the same reports, four years afterwards, in a case of Searle v. Williams, 12 where Hobart, C. J., says:

"And therefore I hold that if a man shall call him felon, or thief, he may have his action, as upon any other pardon, which we resolved in the case of Cuddington v. Wilkins."

But that the court meant that the legal infamy of the conviction was removed, not that the offender was "as innocent as if he had

9 Brown v. Crashaw, 2 Bulst. 154 (1614). But see Puryear v. Commonwealth, 83 Va. 51, I S. E. 512 (1887).

10 On this point more recent decisions have reached a contrary conclusion.

11 Hob. 67, 81; s. c. Brownl. & G. 10.

never committed the offence" is evident from the following sentence in the report:

" 13

"It was said, that he could no more call him thief, in the present tense, than to say a man hath the pox, or is a villain after he be cured or manumised, but that he had been a thief or villain he might say.' The immediate effect of the decision was the reversal of Coke's dictum that a pardoned felon could not be permitted to testify.14

The protection of a pardoned convict from being called by a name appropriate to his crime, and the restoration of his competency to testify, were sometimes expressed by stating that the convict acquired a new "credit" or "credit and capacity." The fact that this mode of expression is used by Hawkins in his " Pleas of the Crown "15 and by Blackstone in his "Commentaries," 16 has led to the habitual quotation of these words subsequently. But the decision even in Cuddington v. Wilkins, if the distinction which the court there took between saying he is a thief and he was a thief is borne in mind, amounts to no more than this, that as the plaintiff had been cleared of the legal consequences of infamy, a statement in the present tense, implying that he was still infamous, was slanderous. Nor does the admission of the testimony of a pardoned felon imply that credit must be given to his testimony.18

17

13 Hob. 81, 82 (1615). The principal case was followed in Leyman v. Latimer, 3 Ex. D. 15 (1877), on very similar facts, and the court upheld the validity of the distinction taken in Cuddington v. Wilkins, between the legality of using the present and the past tense.

14 In Celier's Case, T. Ray. 369 (1680), “It was debated, That admit a witness be convicted of felony, and afterwards pardoned, whether he shall thereby be restored to be a good witness? and my lord chief justice Scrogs and myself were of opinion, That he could not, because the pardon doth take away the punishment due to the offence, but cannot restore the person to his reputation; and of that opinion was justice Nichols in Cuddington and Wilkins' case; Moor 872, pl. 1213. But my brother Jones and Dolben contra; and so afterwards did I conceive; for in the case of Cuddington and Wilkins, as 't is reported in Hobart, 't is said, That the pardon takes away not only poenam, but reatum." See also King v. Crosby, 5 Mod. 15 (1695); Rex v. Castlemain, T. Ray. 379 (1680); Rookwood's Case, Holt 683 (1696).

15 Bk. 2, c. 37, § 48 (title Pardon).

16 Vol. 4, p. 402.

17 Hob. 67, 81 (1615).

18 Thus in BACON, ABR., title Pardon (H), it is said: "A pardon restores a man to his credit so as to enable him to be a witness, but yet his credit must be left to the jury."

In Rookwood's Case, Holt 683, 685 (1696), Holt said, "The pardon restores him to his former capacity," but added, "The conviction indeed might be objected to his credit."

The true line of distinction seems to be this: The pardon removes all legal punishment for the offence. Therefore if the mere conviction involves certain disqualifications which would not follow from the commission of the crime without conviction, the pardon removes such disqualifications. On the other hand, if character is a necessary qualification and the commission of a crime would disqualify even though there had been no criminal prosecution for the crime, the fact that the criminal has been convicted and pardoned does not make him any more eligible.

The importance of the distinction suggested may be illustrated by modern decisions which generally support in their results the argument here advanced, but often not without finding some trouble to escape from the effect of the statement in Ex parte Garland 19 and similar statements to the effect that a pardoned convict is to be treated as if he were innocent.

The question still most frequently raised concerns the capacity of a pardoned criminal to testify. The modern decisions, following the earlier precedents rightly hold that a pardon removes this incapacity,20 except in the case of perjury. The law of England here made an exception and the testimony of a convicted perjurer was totally inadmissible.21 Probably this is still the law of England and a few cases in the United States have accepted the distinction between perjury and other crimes.22 But unless it can be maintained successfully that there is a rule of evidence which 19 4 Wall. 333, 380 (1866).

20 Boyd v. United States, 142 U. S. 450 (1892); Thompson v. United States, 202 Fed. 401 (1913); Singleton v. State, 38 Fla. 297, 303, 21 So. 21, 22 (1896); Roberson v. Woodfork, 155 Ky. 206, 159 S. W. 793 (1913); Diehl v. Rodgers, 169 Pa. St. 316, 32 Atl. 424 (1895); State v. Foley, 15 Nev. 64, 68 (1880); Easterwood v. State, 34 Tex. Cr. App. 400, 31 S. W. 294 (1895); Perry v. State, 155 S. W. 263, (Tex. Cr. App.) (1913). This is true even though the pardon is not given until after the convict has served his sentence. People v. Bowen, 43 Cal. 439 (1872); State v. Blaisdell, 33 N. H. 388 (1856); United States v. Jones, 2 Wheeler's Crim. Cas. (N. Y.) 451 (1824); Rivers v. State, 10 Tex. App. 177 (1881).

21 Wicks v. Smalbrooke, 1 Siderf. 51 (1661); Rex v. Greepe, 2 Salk. 514 (1697); Rex v. Crosby, 2 Salk. 689 (1695); Rex v. Ford, 2 Salk. 691 (1700); Anon., 3 Salk. 155 (1697).

22 Houghtaling v. Kelderhouse, 1 Parker Crim. Rep. (N. Y.) 241 (1851). See also Holridge v. Gillespie, 2 Johns. Ch. (N. Y.) 30 (1816), and an article signed G., presumably by Professor Greenleaf, in 11 AM. Jur. 356.

In Foreman v. Baldwin, 24 Ill. 298 (1860), the same conclusion was reached in regard to a convict pardoned for larceny in view of a statute prohibiting the acceptance of the testimony of one pardoned for that crime.

not only excludes altogether from consideration the testimony of one who has testified falsely in the case on trial, but also excludes the testimony of one who has previously committed perjury, though never convicted thereof, these decisions cannot be accepted for they involve the conclusion that not the act but the criminal conviction is the basis of exclusion, and it seems clear that the legal consequences of the conviction as such are removed by the pardon. The Supreme Court of Pennsylvania in a careful decision criticising and declining to follow the earlier cases, has admitted the testimony of a pardoned perjurer.23

If, however, the eye of the law were unable to distinguish between a pardoned convict and one who had never been found guilty of a crime, proof of the conviction should be as inadmissible to affect the credibility of the witness as it is to effect his capacity to testify; yet it has always been the law and still is that in spite of the pardon the conviction may be used to discredit the witness.24

The right of suffrage forfeited by conviction is restored by a pardon; 25 and the same principle seems applicable here that governs the capacity of a witness. As it was not guilt but conviction which took away the right, the deprivation of it is a legal punishment, and as such a pardon should excuse it.

But under a statute which requires as a condition of naturalization that the alien seeking to be naturalized must prove that he has behaved as a man of good moral character during his residence in the United States, it has been rightly held that a pardoned convict is not within the statute.26 Here it is not conviction, but character, which is in question. The court after quoting from

Ex parte Garland 27 said:

23 Diehl v. Rodgers, 169 Pa. St. 316, 32 Atl. 424 (1895). The same conclusion is reached in Roberson v. Woodfork, 155 Ky. 206, 159 S. W. 793 (1913), but the court apparently was unaware that a distinction had ever been taken between perjury and other crimes.

24 Rookwood's Case, Holt 683, 685 (1696); United States v. Jones, 2 Wheeler Crim. Cas. (N. Y.) 451 (1824); Baum v. Clause, 5 Hill (N. Y.) 196 (1843). It has even been held that evidence of the pardon is not admissible as tending to remove the discredit of the conviction. Martin v. Commonwealth, 25 Ky. L. Rep. 1928 (1904). Cf. 2 WIGMORE, EVIDENCE, § 1116.

25 In re Executive Communication, 14 Fla. 318 (1872); Cowan v. Prowse, 93 Ky. 156, 19 S. W. 407 (1892); State v. Lewis, 111 La. 693, 695, 35 So. 816, 817 (1904); Jones v. Board, 56 Miss. 766 (1879); Wood v. Fitzgerald, 3 Ore. 568 (1870).

26 In re Spenser, 5 Sawy. 195, 199 (1878).

"And yet I do not suppose the opinion is to be understood as going the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the taking effect thereof, that it is also to be deemed that he never did commit the crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not change the past and cannot annihilate the established fact that he was guilty of the offence."

It may be doubted if a court requested to appoint such a person a trustee, would feel sure that he had even been restored to "a state of innocence."

In an Arkansas case,28 it appeared that a probate judge had been convicted of felony and had appealed; while the appeal was pending, he received a pardon which he thereupon pleaded and was discharged. It was held on quo warranto proceeding that the unreversed conviction prevented him from exercising the office of a judge.29

A Virginia statute prescribed a five years' sentence on conviction for a second time of a minor offence. It was held illegal to sentence for this period one who had been pardoned for the first offence.30 This decision seems wrong. The court said that the first offence was in legal contemplation "blotted out." But what has been said sufficiently shows that the law can still see perfectly well, if it is material, that the pardoned offence was committed. The statutory punishment of five years' imprisonment was not a punishment for the first offence, nor partly for the first and partly for the second. It was a punishment imposed by law for the second offence exclusively; and neither in law nor in reason does there seem any warrant for punishing more lightly the second offence of one whose first offence has been pardoned.

In several cases the question has arisen of disbarring lawyers who had been convicted of crime but pardoned. The courts have found some difficulty in escaping the language of Ex parte Garland,31 and in Texas, it has actually been held that a pardon is a complete defence to disbarment proceedings based on the pardoned offence.32 28 State v. Carson, 27 Ark. 469 (1872).

29 See, to the same effect, Commonwealth v. Fugate, 2 Leigh (Va.) 724 (1830). 30 Edwards v. Commonwealth, 78 Va. 39 (1883).

31 4 Wall. 333, 380 (1866).

32 Scott v. State, 6 Tex. Civ. App. 343, 25 S. W. 337 (1894).